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Promoting the Public Domain with Creative Commons' CC0 Initiative

It used to be that you could safely assume a work was public domain unless there was a highly visible warning printed on it, containing both the copyright owner and the date of copyright (at least in the USA). This system also ensured that, when the work's copyright expired, you could tell from any copy that this was so—by simply adding the duration of copyright to the date printed in the work's copyright notice. The Berne Convention, however, changed all that by replacing the assumption of freedom with the assumption of monopoly, and it now takes extensive research to be sure a work is public domain.

The Creative Commons' new CC-Zero initiative, instigated largely as an adjunct to the Science Commons' "Protocol for Implementing Open Access Data" is designed to make things easier.

Open Access, Databases, and the Public Domain

Scientists have valued sharing data for many, many years. In fact, many of the early ideas in the free culture movement were just attempts to port the already-existing academic culture of sharing knowledge into other areas of life. But even in academia, there are obstacles. Journals are in a conflict of interest, for example, since they make their money by selling access to scientific data (even though, ostensibly, their mission is to make this data as widely available as possible). In many fields, particular scientific journals have effective monopolies on the dissemination of knowledge in their fields, so if they decide not to play along, then that field will suffer.

There's a lot of interesting stuff in the public domain, such as this iconic World War II image released recently as part of a Library of Congress upload to Flickr of over 3000 public domain works. CC0 will make tagging works like this easier, in turn making them easier to find and use.

It used to be that you could safely assume a work was public domain unless there was a highly visible warning printed on it

Fortunately, the fields and the journals that serve them are by and large run by scientists. So when a large group of scientists gets behind the idea that the information needs to be more open, not less, in the era of internet communications and massive database-driven science, things begin to happen. In the last few years, that is precisely what has been happening in science within the new "Open Access" movement, which hopes to make most scientific data generally available under the most permissive licenses possible.

The new "CC0 Waiver" is essentially a replacement for Creative Commons' old "Public Domain Dedication". It provides a way for authors to assign their works either public domain status, or put it under a license as near to public domain as the law allows.

Recently, the Science Commons, which had hitherto promoted existing Creative Commons licenses for many of these purposes, has moved towards committing works to the public domain and has been developing a collection of best practices for doing it. That has evolved into the Science Commons' new Protocol for Implementing Open Access Data. Although they are not the only methods available, the Creative Commons' CC0 "waiver" and "assertion" documents have been developed with this protocol in mind.

One of the chief supporters of the new public domain initiatives is the Science Commons, which needs such tools to mark online scientific databases as part of its "Protocol for Implementing Open Access Data".

As for Science Commons' motivations in making this move, they cite both problems with copyleft- and even attribution- license compatibility and also the large body of already public domain works which need to merely be asserted are public domain, rather than be licensed. Furthermore, applying copyright-based licenses to database and other "factual" materials, which may not be copyrightable in the first place, creates false expectations.

What's wrong with the old Public Domain Dedication?

Of course, the Creative Commons has for some time managed a system for dedicating works to the Public Domain. Ths system appears to be viable under US law, but is very distinct from the Creative Commons other licenses, because it is not a license at all.

Also, I say it "appears" to be viable under US law, because although there's now a fair amount of precedent, there's actually little legal basis for authors to assign their works to the public domain. After all, until US copyright law was "reformed" to comply with the Berne Convention, public domain was the default. All you had to do for a work to be public domain was to not seek copyright on it (not label it as copyrighted, not register it with the Library of Congress, etc).

Another public domain image from the Library of Congress collection, this time, circa 1910. This shows a very early amateur radio set.

In other countries, the situation may even be worse, since some "author's rights" are regarded as "inalienable" under some legal systems. You can't give away those rights, even if you want to.

Some "author's rights" are regarded as "inalienable" under some legal systems

As such, it has long been considered better practice in the free licensing community to use extremely permissive licenses rather than attempting to assert that your work is "public domain".

The Creative Commons CC0 documents are a move in that direction. Although not strictly "licenses", these documents are designed to be used alongside licenses, and may be interpreted as license documents in those jurisdictions where such an approach is necessary.

Assertions and Waivers

Another problem with the Public Domain Dedication is that it is only meaningful for works you own the copyright on. The system was not particularly useful for merely indicating that a work is already in the public domain. There is a large body of still-useful works which are in the public domain for statutory reasons—either because they were simply published long enough ago so that their copyrights have expired or because they were not considered copyrightable, such as federal government works in the United States, which by US law are not allowed copyright protection.

The "CC0 Assertion" is a legal instrument not for placing a work in the public domain, but for assuring viewers that you have done a reasonable search to prove that the work is already in the public domain. This is the appropriate document for the Library of Congress examples I've shown, for example.

So, a second reason for CC0 is this need to distinguish these two important tasks: assignment of public domain (or public-domain-like) status and assertion that such status already exists. CC0 calls the former case the "CC0 Waiver" while the latter is the "CC0 Assertion".

Metadata and Marketing

As with all of its licenses, Creative Commons will be providing button graphics, commons "deeds", and "legal code", and machine-readable RDF tagging for CC0 waivers and assertions. Here's the button code a finished CC license chooser might provide for a CC0 waiver (example taken from the CC Wiki / CC-By-3.0):

So, CC0 can be seen as an attempt to normalize Creative Commons' approach to the public domain, lining it up with its other licenses in a simpler-to-understand way.

Button graphics for CC0. The button on the right is an optional Science Commons "norms" button design (Creative Commons / CC-By 3.0, subject to trademark protection).

For science users, the CC0 deeds will implement a new "norms" module. This reminds users that although there may be no legal obligations in the work, there may be ethical obligations. For example, in the sciences it would be regarded as unethical not to provide a proper citation for a work, even if there is no legal "attribution" requirement.

For the benefit of science users, the new deeds also have an option to note "community norms" as well as legal requirements. This one notes that scientific papers should correctly cite works, even when there is no legal attribution requirement.

Furthermore, the RDF code that CC will publish for CC Zero makes it possible for search engines and clients which already have extended features for CC content to extend those features to public domain works marked with CC0 assertions or waivers. This will be a boost for projects like Appropedia's Public Domain Search.

The RDF code that CC will publish for CC Zero makes it possible for search engines and clients which already have extended features for CC content to extend those features to public domain works

Coming soon

The CC Zero modules are not quite ready for prime time. Creative Commons is still actively working on the legal text, and only recently decided to split the module into the two distinct "Waiver" and "Assertion" documents. However, there are a number of science users who are committed to using the protocol as soon as it is ready, and as I hope my Library of Congress examples have shown, there are valuable applications in the humanities as well.

Comments

I am disheartened to read that countries that protect inalienable rights could be considered to be in a 'worse' situation.

We are here, trying to restore the rights that copyright unethically suspends, that should be inalienable, and in the same breath such rights are considered in a negative light? Neutralising copyright is not a rights alienation or abdication, but a restoration, an altruistic nullification of one's unethical privilege. We should all aspire to have our countries protect our rights as inalienable, and abolish such privileges as patent and copyright.

So, the thing that's been interfering with everyone's cultural freedom all these years is the PRIVILEGE of copyright (it's not a right).

People's rights (moral rights, etc.) do not interfere.

The public domain comprises all published works generally available to the public or in general circulation.

It could be divided into works enjoying copyright's protection and those that do not. Indeed, some people like to pretend that copyright protected works remain the private property of their copyright holders and cannot be considered to be in the public domain. These people reserve the term 'public domain' to mean works in the public domain that don't enjoy copyright's protection.

Don't submit to this maximalist redefinition of the public domain as it constitutes a retreat to the ghettos. They aren't sanctuary but cultural exile, and still vulnerable to the predations of copyright. So, reassert the definition of the public domain as all published works, and reclaim them as the public's rightful property.

Either there are "rights" which are "inalienable" and "privileges" which aren't (your proposed terminology) or there are "inalienable rights" (which correspond to your "rights") and "alienable rights" (which correspond to your "privileges").

But these are statements about what the words mean, not anything about what the law should or shouldn't do. My usage is more consistent with the actual terminology used in writing law. Perhaps this is confusing you?

The idea that copyright (or copyright-like laws, defined under separate "moral rights" legislation) is an "inalienable right" is a concept in some European laws, and is embodied in the terms of the Berne Convention on Copyright. This is the problem I allude to in the column.

By treating what you call a "privilege" as what they call an "inalienable right", there is an assumption that materials are copyrighted unless proven otherwise. I agree this is bad. This is why it's bad for these "rights" to be "inalienable".

However, that's the law.

We can whine about that, or we can act to fix it.

Political action may, in time, change things, but as we represent a pretty small political faction, and the opposition is large corporate interests with international pressure, an international treaty on their side, and billions of dollars to lose if we get our way, we can expect to have a pretty hard battle (and frankly, not one we can win any time soon).

But we can patch the problem with legal documents like CC0 and the various free-licensing schemes.

That's the best way we can fix the situation in the near term. It also is the way we can demonstrate a working alternative, which is the only way we'll ever have the constituency to actually change copyright laws all over the planet, which is basically what you are agitating for.

This particular patch (the "CC0 Assertion") deals with the loss of the notice requirement.

As for the term "public domain", I'm sorry, but what it means is "work not covered by any copyright claim". I don't see that it's useful to change such a term, unless you just want to confuse your readers.

The tone of your post suggests you are upset about something I said or about the CC0 idea, yet aside from quibbles over terminology, I can't find anything you disagree with. What's your objection?

Language is very important. Vested commercial interests have distorted the language over the years to misrepresent privileges as rights. And yes, distorted even the language used in writing law.

If you adopt the distorted language of those who would assert their privilege to suspend the public's liberty, then you effectively concede to them at the outset.

One of the better acts to fix things is to fix your own language, to restore the original definitions. After that, then you can make clearer and more informed arguments.

My primary objection is to the insinuation that to be in a country where an author's rights were protected as inalienable could be considered a worse place to be that one where the author could sell or give them away.

Consequently, I'd be interested in a more precise reference to the privilege of copyright being conceived or embodied as an 'inalienable right', for that would be a grievous error indeed.

The language I use characterizes the mode of thought of the people who wrote those laws, thus making it easier to understand how they got to be this way and how they are interpreted (these are the terms that Europeans use when describing their own laws, colored a bit by American usage, I admit).

I prefer to write in a mode that encourages that kind of insight and understanding rather than in a mode which incites blind ideological outrage and disbelief. Certainly in this case, I think it makes more sense. I'm trying to explain how the CC0 system works and why it is necessary, not fire up a copyright-abolitionist rally. This is a rather detailed and legally-technical problem.

I've heard the "framing" argument before, and there is some truth in it. But it can be carried way too far, just like "political correctness".

The IMPORTANT THING here is that finding, using, and releasing material into the public domain is about to get easier (again). There is an interesting political point, too, which is that the Creative Commons is doing more work on the "free" side of its license "spectrum" -- which has got to be a good sign.

I wouldn't have posted in the first place, BUT for the wholly unnecessary aside implying that it was a bad thing for an author's rights to be protected as inalienable.

The whole modus operandi of the free software movement concerns undoing the unethical constraints of the transferable privilege of copyright and preserving this undoing via a conditional licence. This restores all other authors' rights to copy at the sacrifice of the copyright holding author's privilege. There's no need for this to require the undoing of any author's right of publication or their moral rights (not to be misattributed, the integrity of the work that is identified as theirs to be preserved, etc.), so whether they're protected as inalienable is quite irrelevant.

I'm not aware of any law in any jurisdiction that holds the privilege of copyright to be an inalienable right.

Please carry on writing in the way you feel best communicates your ideas to your readers.

However, please permit me to pick you up where you risk construing an author's privilege of copyright as a good thing because it enables particular licenses, and risk construing an author's rights as a bad thing because (if inalienable) they may conflict with particular licenses.

As for the CC0 'public domain'. I see little worthwhile in abdicating one's privilege, compared to the far more philanthropic use of the GPL to neutralise it and restore the public's liberty to a work. So, actually, I don't consider CC0 to be much of an important thing here at all. I'd be curious to know why anyone thinks it is.

You are mistaken if you think that "moral rights" are limited to things like "not being misattributed".

Using a work of yours in another work with, say, a completely different (perhaps completely opposed) political agenda is enough to give you the "inalienable right" to suppress that work's publication (This is called a "prejudicial" use of the work) -- at least according to some interpretations of moral rights laws.

That's a serious compromise of what in the US we'd call a "right to free speech".

A proper free license should be able to suspend this sort of overreaching law, but in such jurisdictions, it can't, because such "rights" are "inalienable" according to those legal systems.

Moral rights concern matters of truth, and arise from the right to truth.

This is one of three rights (life, privacy, truth) that preempt and constrain the fourth right, liberty, which is also constrained, unethically, by two privileges (patent & copyright) - until abolished.

The right to truth is a constraint on the public against its neglectful or wilful impairment.

You can say what you like, but there's no need to endanger life, violate privacy, or commit falsehood, e.g. misattribution, plagiarism, libel, misrepresentation, etc.

On the other hand, there's nothing ethically wrong in making copies of published works - which simply disrespect someone else's commercial privilege.

So, freedom of expression is fine, but not if it impairs truth. Thus it is possible to place someone else's work in an adverse or prejudicial context and by so doing misrepresent the author and/or the truth of their expression.

This is an ethical constraint on freedom of expression - because it rightfully constrains someone's expression against impairment of truth.

And the right to truth is effectively inalienable (though truth is a collective right). You cannot sell the ability for others to misrepresent you. Of course, you can accept money and turn a blind eye, and so can many others, but no-one can claim they have a right to define or ignore the truth concerning your representation even if you'd prefer the money.

So, problems are arising when people fail to appreciate that freedom is not the fundamental right, when people think that nothing must stand in the way of freedom, that if anything does it must be wrong. Free software is software unencumbered by privilege, i.e. without the constraints of patent (against use of ideas) or copyright (against copying or derivation).

When you write software you do not need to endanger life (deliberately introduce defects in flight control s/w), violate privacy (bypass someone's firewall to seize their source), or impair truth (misattribute or misrepresent).

I would agree that because of copyright and the consequent proprietary mentality over published works, people often misinterpret moral rights as proprietary privileges, and confuse the definition of the former with spurious notions of an author's entitlement to control how their work is used. An author does not have a right to control how their published work is used. Rather, all authors are constrained against impairment of the truth concerning any other author and their published works. It's a big difference, but difficult to perceive if one mistakes moral rights to be additional proprietary privileges and simply lumps them all together.

Sadly, you are continuing not to understand that "moral rights" (as used here) is not a philosophical abstraction.

It refers to specific sets of laws, enacted in certain jurisdictions. Those laws cover things that go well beyond your fantasy of what "moral rights" might mean.

There's another, very serious problem with "protecting truth" -- for any question which is remotely interesting, not everyone can agree on what the "truth" is. Nor is it safe to assume that the majority opinion is correct (for centuries, the majority believed a lot of things that are almost certainly false).

I have not attempted to itemise every moral right as recognised and protected in every jurisdiction, but to point out that they arise out of the natural rights to life, privacy, and truth - moral rights predominantly the latter.

Of course the truth is unknowable. However, protecting it need not require knowledge of the truth, but knowledge of a falsehood - which we can know about.

Ultimately, the issue here is a matter of ethics, not an aggressive pursuit of freedom in which one fights against all constraints.

By all means denounce and deprecate the unethical constraints of commercial privilege such as patent and copyright, but do not denigrate rights. Their constraint upon our freedom is to be cherished as the mark of an enlightened civilisation.

I did have a paragraph on this, but perhaps it needs to be expanded. The Science Commons rationale for preferring to promote "public domain" style "licensing" rather than a copyleft free-license is based on two basic conflicts:

1) Copyleft Conflicts

There's more than one free licensing regime out there. Science data spans more than one content type, and so there's a much higher probability of conflict between "content" licenses and "code" licenses.

Furthermore, there's a lot of legacy data that you certainly don't want to shut out, that may be under an archaic license that can't be changed. Science data is supposed to be completely free to share (that's the whole point of the Open Access movement, and is an ancient ideal in the sciences), and so artificial constraints have unintended consequences (yes, the motivation for using free licenses is to ensure that sharing remains possible, but in practice, the actual licenses have a number of -- perhaps unavoidable -- faults that sometimes result in licensing overhead).

2) Scope of Copyright

In order to be copyleftable, a work must first be copyrightable. But MUCH of the data the Science Commons is interested in is just that: data. Facts are not copyrightable, only expressions of them.

Furthermore, even where the expression is copyrightable (e.g. scientific papers), it's not the expression so much as the data contained that we are interested in.

For stuff that's on the borderline, it's probably safer to just release any expectation of being able to control its distribution. The choice of public domain fits this decision.

Science Commons figured that it was better to avoid creating false expectations of an enforceable copyright (or copyleft), by simply acknowledging public domain status.

These reasons are obviously centric to Science Commons' mission, but there are actually a number of niche cases where releasing a work public domain makes more sense than using a copyleft.

PD always has less compliance overhead and less legal risk than any license, including all "free licenses", with or without copyleft. Even assuring correct attribution imposes overhead. Science Commons has decided that it is better to rely on the "community norm" of correct citations than on an enforceable legal requirement.

From a pragmatic perspective, if a work is completely paid for and completly "finished", then public domain or attribution-only licensing makes a lot of sense for the creator. You don't have to worry about special permissions in cross-licensing situations, and you don't really care if the work is appropriated into a commercial/proprietary product, because you haven't really "lost" anything (it's the improvements to your own work that you really want to recover through copyleft, and if the work is "finished", there aren't any. This is hard to imagine for software, but many artistic, literary, and scientific works can be thought of this way).

Finally, of course, CC0 isn't just about the "waiver". There is quite a lot of scientific publications which are already in the public domain, either due to age or, in the US, due to stipulations placed on taxpayer-funded research.

Naturally, there will still be edge cases when the choice of PD will be less desireable, but that's going to be true with any choice you make.

That's a very useful addition to your original article Terry, thanks. :)

I completely agree about the burden of attribution - it should only have ever been a requirement for accuracy, not that attribution must be given.

The other thing about copyleft, is not just to enjoy one's own freedom to use others' published improvements to your work, but to ensure that others don't take this freedom away from anyone else.

It might be good to have something like CC0, but which said "I'll waive any copyrights I have in this published work no matter what use is made of it, except where they may help defend anyone against claims of infringement of copyright in derivative works" - or rather, viable legalese in that spirit.

As for the mess of licence proliferation that makes the case against copyleft in favour of PD, a lot of the blame for this mess can laid at CC's door. There was a missed opportunity for CC to create a single copyleft licence just as liberal as the GPL - instead of a pix'n'mix confusion.

So, for anything other than software we may well be looking at CC0 + 'opproprium against illiberal re-copyright of derivatives' as the only option available until copyright abolition.

Perhaps there could be an FC Norms module? That said "The norms of free culture deprecate any privileged constraint on use of published works".

Author information

Biography

Terry Hancock is co-owner and technical officer of Anansi Spaceworks. Currently he is working on a free-culture animated series project about space development, called Lunatics as well helping out with the Morevna Project.